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Refugee reforms trade fairness for haste

New refugee process gives too much power to the immigration minister and bureaucrats to determine who can stay in this country

Immigration Minister Jason Kenney announces proposed immigration reforms in late March. Concerns have been raised that Ottawa's efforts to streamline the process will result in unfair treatment of refugee claimants. (Adrian Wyld / The Canadian Press)

By Avvy GoBarbara JackmanAndrew Brouwer

Tues., May 4, 2010

“Trust me.”

That, in effect, is what Immigration Minister Jason Kenney is telling Canadians and Parliament through his proposed amendments to the refugee determination system, Bill C-11.

But should we?

The bill represents a major overhaul of Canada’s refugee determination system. Among other things, the bill calls for the transfer of decision-making power at the first instance from an independent adjudicator to a civil servant. It seeks to speed up the entire process by having the initial interview within eight days, and a hearing within 60 days after a claim is filed.

The bill establishes an appeal board for refugee claimants whose cases have been refused. This is a welcome and long overdue step. We all have a right to appeal a minor traffic violation; decisions as important as whether or not one has a right to be protected from being sent back to torture or persecution surely deserve the same due process.

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But under Bill C-11, Kenney would give himself — and all future immigration ministers — carte blanche to decide which refugees deserve to have their cases considered by an independent tribunal, and which ones don’t. This is the case because certain designated refugee claimants will have no right to appeal a negative decision by a civil servant to the independent appeal board.

The minister has said that he plans to deny access to due process only to refugee claimants who come from safe countries, but there is nothing in the bill that defines what is meant by “safe.” He has said that only a handful of countries will be considered “safe,” but there is no limit on how many countries the minister can so designate. Nor is there anything in the bill to insulate the designation process from political, economic and diplomatic influences, even from foreign governments.

The truncated refugee determination system might be acceptable if we could trust that the decision-makers at the first level will always act fairly and competently. But if that were a sound assumption, the minister would not have agreed to set up an appeal board.

It might also work if we were to assume that all the claimants who are shortchanged by the new bill will either have the wherewithal to navigate the system on their own, or be represented by competent counsel to protect their rights. The fact is, however, that many refugees come from non-English speaking countries with dramatically different legal systems from ours, and are therefore deeply dependent on counsel to advocate for and guide them through the process.

Yet it remains unclear whether refugees will continue to have the right to counsel throughout the proposed new system, nor is there adequate and timely access to legal aid for most claimants.

The minister has promised Canadians a balanced reform to the asylum system, one that ensures fairness and protects genuine refugees. But he misses the opportunity presented by the reform to replace a patronage appointment system for refugee judges with one that is truly merit-based.

Kenney says that reform is necessary because the current system is subject to abuse by bogus claimants who cost Canadian taxpayers $50,000 per head. Since the minister never explains the basis for his calculation, we must trust that his math is correct.

As to the minister’s claim that failed claimants are by definition “bogus refugees,” remember that even without the right to appeal, currently almost one in two refugee claimants with full hearings before the IRB are found to be genuine refugees. That percentage will be sure to rise once the appeal system is put in place.

If we think the refugee system is too costly for the less than 50 per cent acceptance rate, let’s consider our criminal justice system. About 65 per cent of those arrested end up being convicted. Should we stop providing fair trials because the majority of the accused are guilty? Better yet, why don’t we start giving out sentences based on the type of offences charged and the overall conviction rates for the offences? After all, shouldn’t we trust police officers and crown attorneys to exercise good judgment regarding when to arrest and when to prosecute someone?

The government has a legitimate interest in clearing the backlog in the system. But denying people a fair hearing and imposing a one-year ban on the filing of humanitarian and compassionate application by failed claimants is not the way to go. It may simply drive more people underground until such time it becomes safe for them to resurface and file an application.

Canadians want a refugee system that makes sense, one that is expedient and cost efficient. But Canadians also want a system that is fair and respectful of human rights. Bill C-11 is definitely fast, but it isn’t fair.

The bill passed second reading last week and has gone to committee.

We should not be so quick to discard a refugee determination system that has been carefully built. At the very least, Canadians should expect robust public debate and demand real public consultation before any reform is put in place. Kenney’s “trust me” just isn’t good enough.

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